The Owners Strata Plan 77450 v Deng

Land and Environment Court (NSW)|2019-12-18

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: The Owners Strata Plan 77450 (Owners) submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the pruning of a Eucalyptus Saligna (Sydney Blue Gum) (the tree), located on the boundary, but predominantly in the rear yard of the adjacent neighbouring property in Wahroonga.
The applicants contend that detached branches from the tree have caused damage, by falling onto the roof of the common property of Unit 8 of the Strata Complex causing tiles to break and crack, which subsequently allowed water to penetrate into the ceiling of Unit 8, and have also fallen onto the patio/garden area of Unit 4. They also claim that these branches pose a risk of injury to residents of Unit 4.
The Owners seek orders; 1. To undertake Tree Works on a Protected Tree on Common Boundary by dead wooding and reducing crown that overhangs the roof of one of our buildings to prevent damage to Common Property and Risk of Personal
Being a boundary tree, protected by Development Application (DA) conditions of consent, Ku-ring-gai Council (Council) requires permission from both property owners for an application for pruning or removal.
Mr Deng resists giving his permission for the tree pruning application, unless and until the Owners satisfy a range of conditions.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. The Owners application included reference to extensive correspondence with the respondent, liaison with CJC with respect to mediation, and an offer to Ms Deng to pay the entire cost of the proposed tree pruning.
The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
The Owners provided copies of paid invoices which itemised roof repairs, including replacement of tiles and ridge caps, on at least four occasions since 2013, necessitated by damage from dropping branches. I am thus satisfied that the tree has caused damage to property on the applicants' land, and the Act is therefore engaged.
Given that s 10(a)(i) is satisfied in that the tree has caused damage, there is no need to consider whether it is currently causing damage, likely in the near future to cause damage, nor whether it represents a risk of injury (s (10)(a)(ii)).

Discretionary matters -Section 12

In making an order, the Court considers relevant matters in s 12 of the Act.

The base of the tree is straddling the common property boundary but it is situated principally on the respondent's land (s 12(a)).
Pruning or removal of the tree requires consent from Council under the Environmental Planning and Assessment Act 1979. The tree is subject to specific DA conditions of consent which enhances protection for both its canopy and root system (s 12(b)). As it straddles the boundary, applications to Council for pruning or other intervention requires consent from the owners of both properties.
Any removal of live foliage reduces the photosynthetic capacity, and thus the health of a tree. This tree is mature and old, very sensitive to impacts which alter its growing capacity, and therefore any pruning must be prudent and minimal. While the specified pruning, covering removal of deadwood greater than 50mm diameter and reduction pruning of the canopy overhanging the applicants' property by no more than 10%, is broadly appropriate, in support of tree health, less is best. Where deadwood provides habitat for fauna, branches can be reduced in length to reduce risk, but not entirely removed (s 12(b2)).
The tree contributes to protection from the sun, and from wind, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The tree has historical significance, and is visible from neighbouring houses, and thus has intrinsic value to public amenity (s 12(b3)(c)(e)(f)).
Being a species indigenous to this area, the tree's flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and thus would contribute significantly to the local ecosystem and biodiversity (s 12(d)).
Given the size of the tree, and the likely vast spread of its root system, even though the land is fairly flat, the tree is likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)).
With respect to anything, other than the tree, that has contributed, or is contributing, to any such damage, or likelihood of damage, including any act or omission by the applicant (s 12(i)), one must consider that the tree was there first, prior to the Owners' development.
The Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the Principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (Black v Johnson (No 2) [2007] NSWLEC 513).

Conclusions

The Owners have provided a comprehensive, organised application. They have satisfied s 10(1)(a), by making a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and have provided evidence such that I am satisfied that the tree has caused damage to their property, thus engaging the Act.
This is a significant historic tree, the likes of which are rapidly becoming more scarce. The tree provides many environmental services such as shade, privacy, contribution to landscaping and soil stability, and it makes a major contribution to biodiversity, in terms of habitat and as a food source.
Therefore, any intervention with the tree must be prudent and minimal. The pruning specified by the applicant's arborist, constitutes an appropriate solution, and will be the basis of my orders.
To clarify, the maximum extent of pruning over the applicant's property must be 10% of the current foliage level. There must be no interpretation of this as maximum reduction of 10% over the entire tree, as this could lead to a reduction of greater than 10% over the applicant's dwellings. Wherever possible, in executing the works, live foliage removal should be minimised. With respect to deadwood removal, it would be appropriate to change the specification to branches above 20mm diameter, rather than 50mm.
The cost of the pruning shall be met by the applicant. This flows from the fact that 'the tree was there first', and provides the Owners control of the management of the tree in the longer term. I am not prepared to order regular ongoing maintenance, given that the extent of pruning of live foliage should be minimised, the time between pruning episodes should be maximised, and one cannot know when a need for pruning will next arise. If and when it does, the Owners will again need Mr Deng's co-operation, and he has explicitly ruled out paying for any works. In any case, this is consistent with the Owners original proposal to Mr Deng.

Orders

The Orders of the Court are; 1. The application is granted. 2. The tree shall be pruned at the applicants expense in accordance with the specifications of quote STS 1634 from Sydney Tree Solutions, dated 3 February 2019. 3. All pruning work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of Amenity Trees). 4. All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 5. Mr Deng shall provide access to his property, should it be required, for the contracted arborists to undertake these works, upon receipt of at least 48 hours written notice from the applicant, of the date and approximate time works are to commence. 6. If these works are not completed within 6 months of the date of these orders, then Order 2 will lapse. ………………………………… J Douglas Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2020

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